Elliott v. Elliott

Parties

Procedural Posture

Application to Vary (family Law Custody/mobility) / Hearing and Decision of Supreme Court of Nova Scotia (family Division)

Legal Issues

1. 1 Whether the custodial arrangement should be varied to permit the mother to relocate to Newfoundland and Labrador with the children
2. 2 Whether the father should be denied or restricted access given the female child's allegations of inappropriate touching and corroboration by the Minister's investigators
3. 3 Whether the mother's employment and financial capacity justify relocation in the children's best interests

Ratio Decidendi

The court awarded primary custody to the mother because, on balance, the best interests of the children were served by permitting her to continue as primary caregiver and to relocate for stable employment: the mother presented a viable plan and sufficient financial resources and there was corroborative Agency concern about the female child's disclosures; the father could not present a viable housing or parenting plan in the immediate term and the allegations raised safety concerns, therefore custody variation in favour of the mother was necessary while preserving reasonable access for the father to the extent feasible.

Court Disposition

Application granted in part: primary custody awarded to the mother; father granted reasonable access as circumstances permit; mother directed to assist with transportation costs for access during school breaks; father may apply for specific directions after filing a detailed parenting plan.

Orders

• Mother awarded custody of both children
• Father granted reasonable access to both children as circumstances permit